Rusanov v Commissioner of Taxation

1. The appellants' interlocutory application filed on 30 January 2025 for the adjournment of the hearing of their appeal, presently listed for hearing on 12 March 2025 (adjournment application) be heard and determined on the papers.
2. The adjournment application be granted.
3. The hearing of the appeal and the notice of objection to competency be adjourned to the next sittings of the Full Court, to be heard on a date to be fixed by the Court after consultation with the parties (the new hearing date).
4. The listing of the appeal and the notice of objection to competency for hearing on 12 March 2025 and the interlocutory directions dated 6 December 2024 be vacated.
5. The Registrar make such further interlocutory directions as may be necessary for the hearing of the appeal and the notice of objection to competency on the new hearing date.
6. A Pro Bono Referral Certificate be issued by the Registrar to the end of the provision of pro bono legal assistance to the appellants.
7. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appellants sought the review by the then Administrative Appeals Tribunal (Tribunal) of the objection decision of the respondent Commissioner of Taxation (Commissioner) in respect of assessments issued for the income year ending 30 June 2011 through to the income year ending 30 June 2016 of the first appellant and for the income year ending 30 June 2010 through to income year ending 30 June 2016 for the second appellant. The Tribunal decided to affirm the objection decisions: Rusanova v Commissioner of Taxation [2023] AATA 2782. 2 The appellants then appealed to this Court in the exercise of its original jurisdiction against the Tribunal's decision, pursuant to the statutory right of appeal on a question of law conferred by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). That appeal was dismissed: Rusanov v Commissioner of Taxation [2024] FCA 777. 3 The appellants have now appealed against that order of dismissal. Their appeal has been set down for hearing before the Full Court on 12 March 2025. 4 Pursuant to an interlocutory application filed on 30 January 2025, the appellants have applied for the adjournment of the hearing of the appeal. An earlier, different adjournment application was refused by Logan J in chambers on 13 December 2024 in the exercise of the jurisdiction conferred on a single judge by s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). This fresh adjournment application is supported by an affidavit of the first appellant, Mr Maxim Rusanov. 5 The appellants act on their own behalf, as they did in the original jurisdiction. As is not uncommon with litigants in person, the earlier adjournment application was made very informally (by email) and was supported by very little evidence. It is evident from the court file that the appellants were later given, quite properly, advice by a registrar as to practice and procedure. The result is that the fresh application conforms with the Court's practice and the supporting affidavit offers a quite different and more comprehensive evidentiary foundation. It annexes material detailing a mental health condition from which the first appellant suffers and the related impact which this presently has on his ability to prepare and present, as he did in the original jurisdiction, the appellants' case. Without descending into detail, it is quite obvious that, although the first appellant is undergoing treatment, the present state of his condition is that he would not be able, if one accepts the supporting medical and psychological evidence, to prepare for the hearing of the appeal in accordance with existing interlocutory directions and to appear on 12 March 2025 to make oral submissions. Given the related nature of the first and second appellants' circumstances, including how the proceedings have been conducted in the Tribunal and the original jurisdiction of this Court, this also affects the second appellant. 6 The case is not one for the vacating, pursuant to s 25(2B)(bc) of the FCA Act, of the adjournment refusal order of 13 December 2024. That is because this is a fresh application which must be dealt with on its separate merits. Nonetheless, because there has been an earlier refusal by the Court constituted by a single judge to adjourn, the application is made in a proceeding that has already been assigned to a Full Court and the appeal has been consigned to a Full Court for hearing, the Full Court considers that, in terms of s 25(2BB)(b) of the FCA Act, it is "appropriate" for the new application to heard and determined by the Full Court. It is also appropriate for this fresh application to be dealt with on the papers. 7 Once these documents had been accepted for filing the fresh application and the supporting affidavit were drawn to the attention of the Commissioner by the Registrar. Given the first appellant's apparent medical condition and the impending engagement of interlocutory steps as directed by the Registrar in December, it seemed to us in the interests of justice that the Court have the benefit of knowing the respondent's position as soon as possible in relation to whether or not the adjournment application was opposed. The Commissioner has advised the Registrar that an adjournment of the hearing of the appeal to the next appeal sittings of the Court is not opposed. No challenge has been made to the evidentiary foundation for the fresh adjournment application. 8 Having regard to the first appellant's present mental health condition, the consequential effect of the second appellant's position and given the absence of opposition by the Commissioner, we are disposed to grant the adjournment sought. The hearing of the appeal will therefore be adjourned to the next appeal sittings of the Court. Those sittings will be conducted between 28 July 2025 and 29 August 2025. The appeal and the notice of objection to competency will be heard during that period on a date to be fixed by the Court after consultation with the parties. Existing interlocutory directions in respect of the hearing of the appeal will have to be vacated and remade by a Registrar, adapted to the end of the hearing of the appeal, now occurring during the next sitting period. 9 It is desirable for the appellants to have the benefit of legal advice and perhaps representation in relation to their appeal. The Court has no power to order that they be given legal aid at public expense. However, it may be that the Registrar is able to secure for them pro bono assistance via the Bar Association. Accordingly, we shall direct the issuing of a pro bono referral certificate. 10 The appellants should not assume that any further adjournment of the hearing of the appeal will be granted. Whether or not that should occur is a question, if it arises at all, for the future, supported by fresh evidence. The appellants should understand that, having instituted an appeal it is incumbent upon them to prosecute it. 11 Costs must be reserved. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Logan, Perry and Wheatley.